Schmidt v. Calgary Board of Education and Alberta Human Rights Commission, (1976) 1 A.R. 286 (CA)

• Judge: Sinclair, Clement and Moir, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 26, 1976
• Citations: (1976), 1 A.R. 286 (CA)

Schmidt v. Calgary School Bd. (1976), 1 A.R. 286 (CA)

MLB headnote and full text

Schmidt v. Calgary Board of Education and Alberta Human Rights Commission

Indexed As: Schmidt v. Calgary Board of Education and Alberta Human Rights Commission

Alberta Supreme Court

Appellate Division

Sinclair, Clement and Moir, JJ.A.

October 26, 1976.

Summary:

This case arose out of a complaint by a Roman Catholic that the Alberta separate schools system was discriminatory against him on the basis of religion contrary to s. 3 of the Individual's Rights Protection Act, S.A. 1972, c. 2. The complainant moved to Alberta and found that, as a Roman Catholic, he was obliged to send his children to a Roman Catholic school in Calgary, unless he either paid non-resident fees or renounced his religion. The complainant paid the requisite fees and sent his children to the public school system; however, he filed a complaint with the Alberta Human Rights Commission alleging that the Board of Education discriminated against him on the basis of religion. A Board of Inquiry dismissed the complaint. The Trial Division on a hearing de novo held that, so long as the complainant paid his taxes to the public school board, he need not pay tuition for his children as non-residents. The Board of Education appealed to the Appellate Division which allowed the appeal.

The Appellate Division held that the provincial Individual's Rights Protection Act could not affect the separate schools system based on religion guaranteed under valid Imperial and Federal legislation, namely the British North America Act, s. 93, and the Alberta Act, R.S.C. 1970, App., No. 19, s. 17. The Appellate Division held that religion was the very basis of separation in the separate schools system and stated that the system was not discriminatory under s. 3 of the Individual's Rights Protection Act.

Constitutional Law - Topic 9546

Education - Separate schools - Alberta - Jurisdiction - British North America Act, s. 93, and Alberta Act, R.S.C. 1970, App., No. 19, s. 17 - Whether Alberta legislation could affect validity of separate schools system - The School Act, R.S.A. 1970, c. 329, provided the structure of a separate schools system guaranteed by the British North America Act, s. 93, and the Alberta Act, s. 17 - The complainant alleged that the system discriminated against him on the basis of religion contrary to section 3 of the Individual's Rights Protection Act, S.A. 1972, c. 2 - The Alberta Court of Appeal held that religion was the very basis of separation in the separate schools system - The Appellate Division held that the Alberta Individual's Rights Protection Act could not affect the separate schools system based on religion guaranteed under valid Imperial and Federal legislation, namely the British North America Act and the Alberta Act - See paragraphs 13 to 17.

Education - Topic 8062

Separate schools - Student selection - "Residence" of parent - Determination of a "residence" where the boundaries of the public school district and separate school district are the same - School Act, R.S.A. 1970, c. 329, s. 53 - Religion governs - The Alberta Court of Appeal held that residence under s. 53 of the School Act was determined by the religion of the person and the place where the person resided and that the fact of residence was not affected by the payment of taxes to one school board or the other - See paragraphs 9 to 11.

Education - Topic 8064

Separate schools - Student selection - Method of selection - Religion - Validity - Whether discriminatory - The School Act, R.S.A. 1970, c. 329, provided the structure of a separate schools system guaranteed by the British North America Act, s. 93, and the Alberta Act, R.S.C. 1970, App., No. 19, s. 17 - The complainant alleged that the system discriminated against him on the basis of religion contrary to s. 3 of the Individual's Rights Protection Act, R.S.A. 1972, c. 2 - The Alberta Court of Appeal held that religion was the necessary method of separation under the separate schools system and is not contrary to s. 3 of the Individual's Rights Protection Act as discrimination on the basis of religion - See paragraphs 12 to 20.

Cases Noticed:

Attorney General for Canada v. Lovall, [1974] S.C.R. 1349, appld. [para. 16].

Richard Issacs et al. v. Bedard, [1974] S.C.R. 1349, appld. [para. 16].

Canard Estate v. Attorney General for Canada and Rees (1975), 4 N.R. 91, appld. [para. 16].

Statutes Noticed:

Alberta Act, R.S.C. 1970, App., No. 19, sect. 17 [para. 6].

British North America Act, 1867, sect. 93 [para. 6].

Individual's Rights Protection Act, S.A. 1972, c. 2, sect. 1 [para. 12]; 3 [para. 15].

School Act, R.S.A. 1970, c. 329, sect. 53 [para. 7]; sect. 59 [para. 10]; sect. 142, sect. 143 [para. 9].

Counsel:

W.E. Code, for the appellant;

W.L. Benkendorf, for the respondent.

This case was heard before SINCLAIR, CLEMENT and MOIR, JJ.A., of the Alberta Supreme Court, Appellate Division.

On October 26, 1976, MOIR, J.A., delivered the following judgment of the Appellate Division: